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Summary of Decisions - October 29, 2012 – November 2, 2012

November 2, 2012 - 2:54pm

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Freedom of Information Act (FOIA) Appeals

On November 1, 2012, OHA issued a decision denying a FOIA appeal (Appeal) of a determination issued by the DOE’s Loan Guarantee Program Office (LGPO). California-Arizona-Nevada District Organization Contract Compliance, the Appellant, requested a copy of documents relating to the loan guarantee contract for the Aqua Caliente Solar Project (Project). Specifically the Appellant requested the names of contractors and subcontractors referenced in the loan agreement. LGPO provided the Appellant with several redacted pages of a document of which the names of three firms who the loan applicant had determined qualified to be the Engineering, Procurement, and Construction contractor for the Project were withheld pursuant to Exemption 4 of the FOIA. The Appellant appealed the withholding of the names of the contractors. Upon its review of the unredacted document, OHA found that the withheld firm names constituted information which had been involuntarily submitted to the DOE and that release of the names could result in competitive harm to the loan applicant. Consequently, OHA found that Exemption 4 had been properly applied to the names of the firms and that the Appeal should therefore be denied. OHA Case No. FIA-12-0060

On October 31, 2012, OHA denied a FOIA Appeal filed by the California Arizona Nevada District Organization (Appellant) of a determination issued by the Loan Guarantee Program Office (LGPO). The Appellant challenged the withholding under Exemption 4 of the FOIA of the total hours worked and total pay received from the released document. OHA found that release of that information would cause substantial competitive harm to the submitters of the information, and therefore, it was properly withheld under Exemption 4. LGPO also withheld the information under Exemption 6. OHA found that the information could not be withheld under Exemption 6, but it could properly be withheld under Exemption 4. OHA Case No. FIA-12-0059

On October 31, 2012, OHA issued a decision denying a FOIA appeal (Appeal) of a determination issued by the DOE’s Golden Field Office (GFO). Specifically, the Appellant, the Native Hawaiian Legal Corporation, contested the adequacy of the GFO’s search, contending that based on the documents that the GFO provided to the Appellant, additional responsive documents should have been produced. OHA reviewed the GFO’s description of its search and determined that the GFO conducted an adequate search for responsive documents. Furthermore, the GFO explained that the documents that it provided to the Appellant were not in fact responsive to the Appellant’s FOIA request, but were offered as an accommodation to the Appellant. Hence, to the extent that the Appellant requested additional documents related to the non-responsive documents that the GFO provided, OHA agreed with the GFO that it did not have to search for, or produce, those additional requested documents. Therefore, OHA denied the Appeal. OHA Case No. FIA-12-0063

On October 31, 2012, OHA issued a decision denying an appeal (Appeal) from two FOIA determinations issued by the DOE’s Office of Information Resources (OIR). Specifically, the Appellant appealed OIR’s decisions not to grant him a fee waiver and expedited processing of his FOIA requests. OHA decided that the Appellant did not demonstrate that the information he sought from his FOIA request would contribute significantly to public understanding of government operations or activities or that the information concerned a time-sensitive matter. Therefore, OHA denied the Appeal for expedited processing of the FOIA requests and a fee waiver. OHA Case No. FIA-12-0061

On October 31, 2012, OHA issued a decision denying a FOIA appeal (Appeal) of a determination issued by the DOE’s Oak Ridge Office (ORO). The Appellant, the Advanced Technology Corporation, contested the adequacy of ORO’s search of its email and fax correspondence pertaining to its FOIA request. OHA reviewed ORO’s description of its search, indicating that a search of emails, email attachments and faxes was conducted extensively, and determined that ORO conducted an adequate search for responsive documents. Therefore, OHA denied the Appeal. OHA Case No. FIA-12-0065

Privacy Act Appeal

On October 31, OHA issued a decision granting in part a Privacy Act Appeal filed by Tom Thielen, relating to a determination issued to him by the DOE’s Richland Operations Office (Richland). Richland had previously withheld certain information from Mr. Thielen’s employee concerns file and Mr. Thielen appealed that determination. On appeal, OHA remanded the matter back to Richland for further consideration, finding that Richland improperly applied Privacy Act Exemption (k)(5) in withholding the information. In its new determination, Richland withheld the same information, this time on the grounds that the withheld information was not “about” Mr. Thielen and, therefore, was not his record under the Privacy Act. Mr. Thielen again appealed the determination. In the instant Appeal, OHA reviewed in camera the documents at issue and concluded that Richland properly withheld certain information – third-party names, job titles, and certain statements pertaining only to the third-party witnesses – because they were clearly not about Mr. Thielen and, therefore, not his record under the Privacy Act. However, OHA identified two statements that are about Mr. Thielen and, therefore, were improperly withheld. Consequently, OHA denied the portion of the Appeal pertaining to the withheld information that it found to be not about Mr. Thielen. Further, OHA granted the Appeal with respect to the statements that it identified as being about Mr. Thielen, and remanded the matter back to Richland for further processing on the narrow issue of whether to release the two statements or issue a new determination justifying their withholding. OHA Case No. FIA-12-0057 (Diane DeMoura, H.O.)

Personnel Security Hearing (10 CFR Part 710)

On November 1, 2012, an OHA Hearing Officer issued a decision in which she concluded that an individual’s security clearance should not be restored. A Local Security Office conducted a Personnel Security Interview of the individual to address concerns about the individual’s financial irresponsibility. After conducting a hearing and evaluating the documentary and testimonial evidence, the Hearing Officer found that the individual had not presented sufficient evidence to resolve the security concerns. Specifically, she found that the individual’s recent efforts to resolve his debt have not yet withstood the test of time. Given the individual’s pattern of financially irresponsible behavior, she was not convinced that the chances of a return to such behavior are acceptably low. OHA Case No. PSH-12-0074 (Kimberly Jenkins-Chapman, H.O.).